Monday, January 11, 2016

Our "Justice" System, Part II

I rather
like judges in the abstract. I generally favor broad discretion for judges
acting on the cases before them. In the particular, though, judges can be
problematic.

Judges
start out as lawyers, and this often leads to problems. During their lawyer experience,
judges often develop biases. Most lawyers, especially in urban settings, tend
to work in narrowly defined areas of law. Criminal lawyers (no jokes, please);
property lawyers, business lawyers; family lawyers (usually divorce lawyers);
tort lawyers; banking lawyers. Many, upon being elevated to the bench, are
assigned to work within the area of their expertise. I’ve seen this work both
for and against clients.

If a
bankruptcy judge worked for banks as a lawyer, he will tend to favor banks as a
judge. He or she is liable to view all debtors as deadbeats. If the judge
worked for debtors as a lawyer, he is liable to favor them as a judge as well.
A judge who had been a criminal defense lawyer, or a Public Defender, he will
probably be skeptical of everything the prosecution does and lend a sympathetic
ear to criminal defendants and their lawyers. If a judge had been a prosecutor,
a District Attorney, she will almost certainly treat criminal defendants as
obviously guilty, because why else would they have been arrested and charged in
the first place? Judges can rise above these attitudes, but this kind of
prejudice is often apparent.

Judges are
afraid of being overturned on appeal. There are two main ways for a judge to
further his career: 1) ruthlessly clear cases from his calendar by dismissing
cases; and 2) have a low record of being overturned. These things often work
together.

A judge
will carefully weigh the power and resources of the parties before him, and he
will often decide a matter on the basis of what is best for him. Any time I
said, “Frederick Ceely for the plaintiff, your honor,” and the other lawyer
said, “Robert Miller (not a real person) for Gibson, Dunn and Crutcher
appearing for the defendant,” I was in danger of losing, irrespective of the
law and the facts. This is because the odds are that my client cannot afford to
mount an appeal or a writ if we lose, while the defendant that can afford
Gibson, Dunn can afford it and they will almost certainly file it. Gibson, Dunn
has an appeals section for that, and they get paid, big time. If I lose, the
judge is safe; if the other guy loses, the judge is in danger of being
overturned. For many judges, this is an easy decision to make, and justice is
not served.

God forbid
the other lawyer should introduce herself as, “Jane Barton, appearing on behalf
of the United States of America.” Those lawyers had resources, they’d appeal
everything, right up to the Supreme Court if necessary. Judge just surrender
and give them the ruling. Small fry get
pushed around, and they get pushed straight off the calendar before they know
what hit them.

This works
with the dismissal of cases, too. Dismissals on the pleadings most often happen
when the targeted lawyers and their clients have meager resources to fight
back.

Recall that
judges were once lawyers, so it’s easy to believe that no judge ever believes a
word that comes out of a lawyer’s mouth. They lied when they were lawyers; now
they assume that all of the lawyers appearing in their courts are lying too.

Most do not
like the guidelines, etc, with which the legislatures have saddled them, but
many feel like it makes their jobs easier. Less work; someone to blame if
something goes wrong; less emotional involvement.

I remember
many good judges, men and women that I respected and in whose courts I felt
safe that we were going to get a fair hearing. I also remember very well a
large number of black robed devils who wreak havoc on a daily basis without a
passing thought to justice.

Judges are
just men and women, after all. Geniuses among them are rare, as they are rare
among lawyers in general, or people in general for that matter. They do the
best that they can, if you are lucky, but often that best is not very good and
the only “best interest” that they serve is their own.

Lawyers

Disclaimer: I am a lawyer myself. I am
admitted in the State of California, and in two of the Federal District Courts
that are located in California. I claim no distinction for myself, but I will
admit the status.

I worked in
the trenches for twelve years or so. I made countless court appearances, most
of them for matters of civil law and motion or bankruptcy hearings. Some
trials, some arbitrations, some mediations. A couple of score of depositions. Sometimes
I was even a party to the case! It was never a good fit for me, a bit too
stressful. After ten years or thereabouts I realized that according to the published
code of ethics it was often an ethical violation for a lawyer to tell the
truth. Lawyers can often be sued for telling the truth. That was one of the
last straws for me.

I was
substitute teaching there for a while, looking for an alternative, and one wise
guy in an eighth grade at some Jewish school asked me, “so, you’re a lawyer,
that means that you lie?” I told him, “well, I try never to say anything that
is actually not true out loud, but I do refrain from saying things sometimes,
or try to spin them away from the question.”

Of lawyers,
one hears the most complaints, and the most unhinged complaints, about “plaintiff’s
lawyers.” This is a misplaced criticism. Plaintiff’s lawyers represent ordinary
people in their struggles against insurance companies, soulless corporations,
medical providers, and other predatory entities. Good for them. Criminal
defense attorneys get a bad press too, but honestly, they are not “trying to
get guilty criminals off.” They’re trying to get ordinary folks a fair hearing
on the merits. Usually the best that they can do is prevent someone from being
railroaded into a bunch of extra years. The best that they can usually do is
get a guy two to five instead of seven to ten. No, the real abuses by lawyers
happen on the other side, the prosecutorial side.

I have
often said that a prosecuting attorney is someone whose job it is to put
innocent people in prison. “Innocent” is not a word that I use frequently,
because in our world of reality only tiny babies are truly innocent. What I
mean here is that if a prosecutor is handed a case by his boss, and upon
reviewing the file and doing a little bit of investigating he realizes that
there’s no way in Hell that the guy did it, he’ll go ahead and try the case
anyway. He’ll do his best to put the fellow in prison for as long as he can. It’s
his career, after all. All prosecutors will describe this phenomenon in the same
way: “it’s not my job to judge him; it’s my job to present the state’s case
against him.” See? It’s that evil jury that puts him in prison, not the poor,
humble prosecutor.

Prosecutorial
excesses are all over the news these days. The legislatures have criminalized
everything, so there’s always a laundry list for prosecutors to charge. And they
charge defendants with everything under that sun. So the choice for a criminal
defendant goes something like this. “You’re looking at a total of 228 years in
prison if you are found guilty of all charges, or you can plead guilty to
(something) and get only seven years.” What would you do? I’d take the seven
years myself. Our prisons are full of completely innocent people who accepted
the logic of this system.

I suppose
that the real contribution of lawyers in general to the demise of our criminal
justice system is that being reasonable when performing any function involving the
legal system is just not possible. Everyone fulfills their role, with all of
the contradictions and ethical shortcomings that it entails.

Or, they
retire from the practice of law, flee to a developing country, and teach
American law at a foreign university.
That’s what I did, and I’ve never regretted it.

Witnesses

Let’s put
trial witnesses into three categories: regular folks; experts; and police. All
three types represent an endless parade of mischief makers.

Trial
courts try to discover what happened at some past date and time. This is never
easy, since none of the professionals involved in the trial was there when it
happened. Not the judge; not any of the lawyers; not the police that may be
involved. Regular people who have seen something, or heard something, which
might be useful as evidence, are invited to appear at the trail and answer
lawyers’ questions about their experience. This most often produces testimony
that is a hot mess.

Witnessing
is hard. Many witnesses tell the truth, as best they can, but what they may
have seen was almost certainly a shocking event. That will interfere with their
perception of it, and their memory of it. Even a pretty run of the mill event
is hard to describe, afterwards.

I witnessed
a car accident one time. Not a criminal matter, but illustrative. My desk
overlooked a busy intersection, and while I happened to be looking an accident occurred
that involved about five cars, maybe six. I had been a lawyer for many years
already, and had worked on numerous car accident cases. My eyes were on the
event for the entire time. But I’ll tell you, when a bunch of cars start
bouncing off of each other and spinning around, it’s very hard to recall
accurately just who did what to whom. I made a diagram immediately, assigning
fault to designating “Car Number One,” etc., in the manner of California
police, and I showed it to my friends in the office. They could see where the
cars where after it had all settled down, right out the window, and yet my
diagram made little sense to them. How was it possible? I was a very qualified
witness, but hardly credible, because it all seemed so unlikely.

Regular
folks are often telling lies, too, let’s bear that in mind. They’re trying to
help someone, to help the defendant in a criminal trial or the plaintiff in a
tort case. It happens.

And police!
I would never believe a word that a policeman said as a witness in a criminal
case. No, believing them would be stupid. For one thing, they’re trying to hang
the defendant, and for another thing, they’ve been thoroughly prepped by the DA’s
office and they’ll say what they’ve been told to say.

Same goes
for the experts. When I listen to expert testimony, I only have one question:
who paid you? They’ll testify to whatever is good for their client. Or else
they’ll never work again, that’s for sure. Remember what a mess the experts
made of the O.J. Simpson trial?

I used to
wonder if court appointed experts could be trusted. They, after all, are hired
by the judge, who is supposed to be neutral. Now I wonder, though. They want
the judge to hire them again, so they’ll probably do what they think that the
judge wants them to do. Shouldn’t be too hard to figure out. So let’s not
believe them either.

Conclusion

The whole
idea of a fair justice system seems like a mighty big demand to make on
reality. It just seems like a terribly hard thing to set up, in the best of
situations.

Whatever
system one could come up with, it would be administered by mere humans. Wouldn’t
that insure that the entire thing would go wrong in a hurry? In a New York
minute?

When it has
worked better than it works today, that was possible because society and the
people involved had a sense of how difficult it was. They left a certain amount
of slack in it. Sure, occasionally a guilty party went free, but the idea was
that that was preferable to innocent people going to prison.

Now we have
legislators mishandling criminal defendants to get elected; prosecutors going
along for the ride, drunk with their own power; lawyers just trying to make a
living; and a general public that is conditioned to live in fear of crime,
terrorism and minorities. The results are mass insecurity and mass
incarceration.

Now,
regarding this mass incarceration, who can say with confidence that it is not a
conscious program of imprisoning people just to take them off the voter rolls,
permanently? Would you put it past those legislators?

The least
that any of us can do is to try to consider these problems and take small steps
to insure that we don’t assist those who are trying to make matters worse.

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About Me

Mr. C is: a reformed lawyer; a religious atheist; a useful "Handy Man;" an amateur social scientist; a beloved teacher; a well liked husband and father; Ambassador Emeritus from, and to, Planet X; a freelance professor; taxi driver to the stars (Joe DiMaggio and Ronald McDonald, both out of uniform); an excellent fire fighter; an enthusiastic but untalented musician; an experienced counselor; a top-notch disk jockey; an all around get-along-guy; a cunning linguist; a would-be lifestyle victim; a Masonic wannabe; a frequent reader; Professor Irwin Corey's Ph.D. adviser; an accomplished driver and motorcyclist; a famous rockologist; a reliable but indifferent bullshit detective; a poor speller; a proud United States Navy veteran (honorably discharged, barely); the Ayatollah of Ass-o-Hola; a drug legend; a Returned Peace Corps volunteer (Thailand); a generally charming man; nationally and internationally known from coast to coast; a legend in his own mind; a cultural-anthropological critic-at-large; an avenging angel who coolly bides his time; Soul Brother number 37; and a friend to the poor.